Cover

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pp. 1-1

Title Page, Copyright, Dedication

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pp. i-vi

Contents

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pp. vii-x

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Acknowledgments

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pp. xi-xii

...The editors gratefully acknowledge the Floersheimer Center for Constitutional Democracy for its generous support. The editors also wish to thank Andy Strauss (Benjamin N. Cardozo School of Law 2002) for taking a leading role in compiling the chronology and for his able research and editorial assistance. Mimi Yang (New York University School of Law 2003) also provided valuable research assistance. Eric Smoodin, our editor at the University...

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Introduction

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pp. 1-21

...Quite unexpectedly, the American presidential election of 2000 has become the most remarkable and in many ways the most unsettling one that the country has yet experienced. The millennial election stretched for well over one month, and its repercussions are sure to be felt for a long time to come. It has raised fundamental questions not only about American democracy but also about the nation’s...

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Cast and Chronology

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pp. 22-44

...Albert Gore Jr., vice president of the United States and Democratic candidate for the U.S. presidency. Joseph Lieberman, Democratic senator from Connecticut and Gore’s running mate. George W. Bush, governor of Texas and Republican candidate for the U.S. presidency. Dick Cheney, secretary of defense under George H. W. Bush, George W. Bush’s father, and George W. Bush’s running mate...

PART I. In the Heat of Battle

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1. Equal Protection for Votes

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pp. 47-49

...“Counting all the votes” and “fairness” are catchwords of the now more than five-week-long postelection campaign. These principles have collided repeatedly as the Gore campaign seeks manual recounts and the Bush campaign protests the unfairness of these recounts. “The lack of uniform standards for counting ‘votes,’ ” the Bush campaign...

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2. Law and Data: The Butterfly Ballot Episode

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pp. 50-66

...In “Law and Data,” data analysts track down the facts and prove their theories, but they often have trouble explaining them simply and clearly. Lawyers find it hard to obtain, or even define, justice. And the law sometimes goes in odd directions, missing the biggest facts and emphasizing seemingly trivial ones. Justice is not always done...

PART II. The Machinery of Democracy in America

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3. Disputing Elections

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pp. 69-86

...The most incendiary issue any democratic system can confront might well be the selection of its chief executive when election results are disputed, obscure, and sharply divided. If we consider this issue from the perspective of democratic institutional design, we should anticipate that such situations are likely to arise eventually in any long-running...

PART III. The Decisions

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4. A Badly Flawed Election

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pp. 89-99

...The 2000 election has finally ended, but in the worst possible way—not with a national affirmation of democratic principle but by the fiat of the five conservative Supreme Court justices, Chief Justice Rehnquist and Justices Kennedy, O’Connor, Scalia, and Thomas, over the fierce objection of the four more liberal justices, Justices Breyer, Ginsburg, Souter, and Stevens. The conservatives stopped...

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5. Exchange between Ronald Dworkin and Charles Fried

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pp. 100-110

...I cannot claim to be a disinterested observer of the events Ronald Dworkin comments on in his essay “A Badly Flawed Election.” I was counsel of record to the Florida legislature in the two Supreme Court cases spawned by the tabulation of the vote in Florida. In our second brief my Harvard colleague, Einer Elhauge, and I presented...

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6. Bush v. Gore: Three Strikes for the Constitution, the Court, and Democracy, but There Is Always Next Season

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pp. 111-143

...Actually things were much worse on that fateful day, December 12, 2000, when, in a 5–4 decision, a deeply divided Supreme Court put an end to the election and anointed George W. Bush president. Indeed, not only was the Supreme Court’s majority decision patently unprincipled, but it also revealed a troubling flaw in the Constitution and potentially severe cracks in American democracy. As the Court...

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7. The Unbearable Rightness of Bush v. Gore

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pp. 144-188

...For almost forty years, the Supreme Court has treated the stuffing of ballot boxes as a paradigmatic violation of the Equal Protection Clause. Much subtler and more indirect forms of vote dilution have also been outlawed. Like some of those practices, the selective and partial recount ordered by the Florida Supreme Court may have been an inadvertent form of vote dilution. But that recount...

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8. The Ghostwriters

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pp. 189-211

...theirs must fall within the category of opinions suggested by “almost.” Greenhouse does not speak directly about the Court, only courts, and does not go into any detail about the occasions on which the Court, or, more precisely, a majority on the Court, labels an opinion “per curiam.” Without knowing this, a reader may be forgiven the impression that recourse to the per curiam device...

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9. Notes for the Unpublished Supplemental Separate Opinions in Bush v. Gore

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pp. 212-224

...We write separately to explain why we believe that the Florida legislature adopted the federal December 12 “safe harbor” provision for certifying presidential electors as a firm, nonextendable deadline for completing the count of ballots for presidential electors and why it was permissible, indeed necessary, for us to have decided that very important...

PART IV. American Perspectives

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10. Anatomy of a Constitutional Coup

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pp. 227-235

...It was a curious time for a crisis. An extraordinary boom had provided the rich with fabulous wealth and America with full employment. The disappearance of the Red menace gave the nation an effortless cultural primacy. The air force had even established that wars could be won without casualties. What was there to worry about? Certainly Al Gore and George W. Bush weren’t calling on Americans to ask any large questions...

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11. The Many Faces of Bush v. Gore

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pp. 236-249

...It was a cold night, December 12, 2000, as the journalists gathered in front of the Supreme Court building in Washington, D.C. They were awaiting word on the third intervention taken by the Supreme Court in the election controversy of the century—the unresolved presidential race between George W. Bush and Al Gore. The Supreme Court had never decided a presidential election. The ubiquitous...

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12. Springtime for Rousseau

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pp. 250-255

...Late in November 2000, three weeks into the postelection election, Representative Jerrold Nadler, a liberal Democrat representing the West Side of Manhattan—one of the bluest of what political America would soon be calling the blue counties—sniffed the atmosphere and made a noteworthy charge. “I don’t think I’ve ever called anything else like this before, but I will now,” Nadler said. “The whiff of fascism is...

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13. Machiavelli in Robes? The Court in the Election

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pp. 256-276

...“The republic’s debates cannot be half secret and half free.” Thus not Lincoln but Linde—Oregon Supreme Court Justice and noted legal scholar Hans Linde, lecturing in 1988 under the title, “A Republic . . . If You Can Keep It.”1 Events such as Iran-Contra, in which dissimulation or secrecy itself becomes a component of government policy, were making Linde wonder whether we had kept our Republic, or...

PART V. Foreign Perspectives

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14. A Flawed yet Resilient System: A View from Jerusalem

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pp. 279-294

...For an outside observer, the crisis surrounding the November 2000 U.S. presidential election presented a mixed and contradictory picture. On the one hand, it proved beyond doubt the resilience of the American political and judicial system under difficult circumstances, which easily could have led to an intractable constitutional crisis—if not...

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15. Constitutional Council Review of Presidential Elections in France and a French Judicial Perspective on Bush v. Gore

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pp. 295-317

...At a time when the market economy is on the way to dominating the world, some people are announcing that ideologies are dead and that politics is being ousted by economics. Is this prophecy becoming a reality? There are good grounds for doubting it, considering the excitement that political elections continue to generate in the life of a country...

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16. Seven Reasons Why Bush v. Gore Would Have Been Unlikely in Germany

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pp. 318-321

...A direct parallel between the events of November and December 2000 in the United States and the situation in Germany cannot be drawn. The systems are too different. Whereas the United States is a presidential democracy, Germany can be characterized as a parliamentary democracy. The federal president, whose functions are more representative...

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17. Bush v. Gore: A View from Italy

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pp. 322-331

...Electoral systems are algorithms that permit the transformation of a number of votes (N) into a smaller number of seats (n). Since the beginning of representative government, this essential mechanism of democratic states, like the right of suffrage, has been discussed extensively...

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18. Democracy in America: A European Perspective on the Millennial Election

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pp. 332-344

...There are still many for whom the basic constitutional structure of the United States is regarded as an attractive model for what the European Union ought to become. The attraction of the United States in this respect is obvious. The political structure established by the U.S. Constitution is perceived as having provided a remarkably stable institutional framework over a span of more than two centuries...

PART VI. Reform?

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19. Weighing the Alternatives: Reform or Deform?

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pp. 347-360

...Alexander Hamilton began Federalist No. 68 by awarding Electoral College credits to the Framers. He noted, “The mode of appointment of the Chief Magistrate of the United States is almost the only part of the system, of any consequence, which has escaped without severe censure or which has received the slightest mark of approbation from its opponents.” The modern reader is astonished! Since then, there...

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20. The Electoral College: A Fatally Flawed Institution

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pp. 361-370

...The Electoral College is a highly imperfect method of electing the president of the United States. At best it distorts campaign strategy and poorly represents the popular will. At worst it can create a political and constitutional crisis in determining who should be president. My argument is simple: the 2000 election, like any election, vividly illustrates the distortions and imperfections of this fatally flawed...

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21. The Electoral College: A Modest Contribution

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pp. 371-390

...If one were to make a list of the most valuable elements of the United States Constitution, ranking them according to the importance of their contribution to preserving constitutional values, the Electoral College would fall rather low on the list. It is doubtful that we would design such an institution today if we were writing a constitution from scratch, and even the Founders came up with the device rather haphazardly...

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22. Popular Election of the President without a Constitutional Amendment

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pp. 391-396

...In the wake of the 2000 presidential election, it is certain that there will be debate about whether a nationwide popular vote should be substituted for the Electoral College mechanism for choosing the president. But that debate may be stifled to a degree because of the widespread assumption that constitutional amendment is the only...

List of Contributors

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pp. 397-400

Index

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pp. 401-417